1. This is an appeal from an order of the District Judge remanding the case to the first Court for a trial de novo. The suit was one for a declaration of title and for possession of land by demolition of certain constructions on it. One of the points in dispute was whether the constructions were old or new. On the 22nd of March, 1928, a joint application signed by the Pleaders for both the parties was filed before the learned Munsif in which they agreed that the Court should personally inspect the locality, and might ask the parties to produce any further evidence which it considered necessary, and then record a judgment which should be acceptable to both the parties in every way. After this agreement the Court; made the local inspection and took such steps as it considered necessary and then pronounced its judgments. In the body of the judgment the learned Munsif has referred to this agreement and has stated that the parties undertook to abide by the decision of the Court if it was made after a local inspection and that it was in consequence of this undertaking that he inspected the locality in the presence of the parties and their Pleaders.
2. The suit was dismissed by the first Court and the plaintiffs appealed. The learned Judge on appeal has come to the conclusion that the agreement referred to above amounted to a compromise between the parties and not a reference to arbitration and that without an express leave granted by the Court the compromise was not binding on the minor plaintif Section He has accordingly sent the case back for trial on the merits.
3. The defendant has come up in appeal before us and challenges the findings of the District Judge. On the first question we have no doubt that the agreement cannot possibly be treated as a reference to arbitration. The procedure laid down for such a reference is to be found in Sen. II of the Code of Civil Procedure which contemplates an entirely different kind of procedure from what the parties had in mind in this case. It cannot be imagined that the parties in this case intended that that procedure should be followed. In similar instances it has been held by this High Court in several cases an agreement of this kind amounts to a compromise between the parties. We may simply refer to the cases of Sita Ram v. Peare : AIR1925All558 Civ. and Uadan Mohan Gargh v. Munna Lal : AIR1928All497 .
4. Being a compromise, it was necessary for its validity that there should be an express leave granted by the Court to the next friend to compromise the matter in that way. The next friend of the minors did not himself sign the application but it was signed by the Pleader for the next friend, and we may take it that the Pleader had the authority of the next friend to give his consent to it. But Order XXXII, Rule 7 requires that no next friend shall without leave of the Court expressly recorded in the proceedings enter into any agreement or compromise on behalf of the minors with reference to the suit in which he acts as next friend. The rule is imperative and debars a next friend from compromising a matter unless he has previously obtained leave of the Court which must be expressly recorded in the proceedings. Admittedly no such leave was asked for and none was granted, much less has any such leave been recorded in the proceedings.
5. The learned Advocate for the appellant argues that inasmuch as the Court itself acted upon this agreement it must be assumed that it granted such leave. But as observed by their Lordships of the Privy Council in the case of Manohar Lal v. Jadu Nath Singh 28 A. 585 : 8 Bom. L.R. 489 : 4 C.L.J. 8 : 10 C.W.N. 898 : O.C. 219 : 1 M.L.T. 210 : 16 M.L.J. 291 : 3 A.L.J. 710 : 33 I.A. 128 (P.C.) in order to show that the exigencies of the provisions of the section had been complied with, there ought to be evidence that the attention of the Court was directly called to the fact that a minor was a party to the compromise; and it ought to be shown in some way not open to doubt that the leave of the Court was obtained; the facts that the minor was so dessribed and was appearing by a guardian, and that the compromise was before the Court are not in themselves sufficient. This case was, of course, followed by a Bench of this Court in Badri Prashad v. Gopal Bihari Lal 50 Ind. Cas. 752 : 41 A. 553 : 17 A.L.J. 789, where it was remarked that 'it is necessary for the validity of such compromise that there should be on the record a specific order of the Court giving leave to the next friend to enter into the compromise on behalf of the minors: see also Gulab Dei v. Vaish Motor Co. : AIR1925All570 .
6. The learned District Judge has found that there was nothing to show that the application disclosed the fact to the Court that the parties to the suit were minors and that there is nothing on the record to show that before the Munsif gave his consent to act on the application it was ever brought to his notice that the plaintiffs in the suit were minors, or that he ever applied his mind to the question whether the agreement which was being made on their behalf and which necessarily took away the right of appeal was for their benefit. Such leave cannot be necessarily inferred from the mere fact that he acted upon the agreement. On these facts we have no doubt that the minor was in no way bound by this compromise and that the next friend's consent was not authorised by the provisions of Order XXXII, Rule 7.
7. It, therefore, follows that there was no valid and proper consent, as required by law, given in this case and we are unable to treat the decree passed by the Munsif as a mere consent decree under Section 96(3) from which no appeal can be preferred.
8. We may also note that in appealing the minors were challenging the validity of the compromise entered into by their next friend on their behalf without the express leave of the Court. We see no reason they should not be allowed to impugn the validity of the said compromise by way of appeal. If the compromise were under Order XXIII, Rule 3, an appeal from an order recording such a compromise is expressly provided for under Order XLIII, Rule 1(m).
9. The result is that this appeal fails and is dismissed with costs including in this Court fees on the higher scale.